Ewing's Trustees v Ewing
| Jurisdiction | Scotland |
| Judgment Date | 27 January 1909 |
| Docket Number | No. 72. |
| Date | 27 January 1909 |
| Court | Court of Session |
Lord Low, Lord Ardwall, Lord Dundas, Lord Justice-Clerk.
SuccessionFaculties and PowersPower to appoint under conditions, limitations, and restrictionsAppointment to alimentary liferent with power of disposalFee and Liferent.
By an antenuptial contract of marriage the trustees were directed, after the death of the surviving spouse, to hold the fee of the estate conveyed to them by the wife for behoof of the children of the marriage in such proportions, and subject to such conditions, limitations, and restrictions, and with such terms of payment and vesting as the wife should appoint by any deed under her hand.
The husband having died leaving a son and daughter, the wife executed a deed of appointment by which she directed the trustees to retain three-fourths of the estate for behoof of her daughter in liferent for her liferent alimentary use only, and on her daughter's death to apply the capital so liferented in such manner as her daughter might direct by any writing under her hand, whether inter vivos or mortis causa, and failing such appointment to pay and convey the same to her daughter's heirs in mobilibus.
Held (1) that the wife's deed of appointment was a valid exercise of the power, and (2) that the daughter's right under the deed of appointment was not a right of fee.
Carver v. BowlesENR, 1831, 2 Russell & Mylne, 301, approved and followed.
Mackenzie's Trustees v. Kilmarnock's Trustees, infra, p. 472, followed.
TrustTerminationPower of appointment under marriage-contract Appointer's direction that fund to be administered by her testamentary trustees.
By an antenuptial contract of marriage the trustees were directed, after the death of the surviving spouse, to hold the wife's estate for behoof of the children of the marriage in such proportions, and subject to such conditions, limitations, and restrictions, as the wife might appoint.
The wife executed a deed of appointment by which she directed the marriage-contract trustees to hold certain shares of the estate for behoof of her daughter in alimentary liferent, and on her daughter's death to dispose of the capital in such manner as the latter might direct. Discretionary powers were conferred on the trustees of advancing capital to or for behoof of the daughter.
Subsequently the wife made a holograph writing in the following terms:I hereby alter the deed of appointment to this extent, that the provisions it contains in favour of my daughter are to be paid to the trustees named in the wife's trust-disposition and settlement to be administered by them as directed in the said deed of appointment.
Held that the capital of the estate appointed to the daughter fell, on the death of the survivor of the spouses, to be paid over by the marriage-contract trustees to the wife's testamentary trustees, and to be administered by them in terms of the deed of appointment.
By contract of marriage between William Ewing, merchant in Glasgow, and Miss Harriet Janet Jones, residing at Laurie Park, Sydenham, Kent, dated 26th January 1866, and registered in the Books of Council and Session on 17th March 1866, Miss Jones (who afterwards became Mrs Ewing) conveyed the whole estate then belonging to her, or to which she might acquire right by succession or conquest or otherwise during the subsistence of the marriage, to trustees for behoof of herself, and her husband if he survived her, in liferent. With regard to the disposal of the fee or capital of her estate the contract provided as follows:The said trustees shall hold the fee or capital of said means and estate for the use and behoof of the child or children of the said intended marriage, and the survivors and survivor of them, and the issue of such of them as may have predeceased the terms of vesting leaving lawful issue, in such proportions, and subject to such conditions, limitations, and restrictions, and with such terms of payment and vesting as the said Harriet Janet Jones shall appoint by any deed under her hand; and failing any such appointment, then the said trustees shall hold, pay over, and divide the said means and estate equally to, and for behoof of, the said children, and the survivors and survivor of them, and the issue of such of them as may have predeceased the terms of vesting after mentioned leaving issue, such issue succeeding always equally only to the shares to which their parents would have been entitled had they been in life. Declaring that the said provisions shall vest in such of said children, being sons on their respectively attaining majority, and being daughters on their respectively attaining majority or being married, whichever of these events may happen first, if the said intended spouses be then deceased, or on the death of the survivor of the said intended spouses; and that the said provisions shall be payable at the first term of Whitsunday or Martinmas after the death of the survivor of the said intended spouses, if they have then vested, or on their respectively vesting.
Mr Ewing died on 20th November 1897, survived by his wife and also by two children, Mary Jessie Ramsay Ewing and Arthur Ramsay Ewing, the former born on 4th September 1869, and the latter on 20th August 1870.
In professed exercise of the powers conferred upon her by the marriage-contract, Mrs Ewing executed a deed of appointment, dated the 3d day of August 1898, and registered in the Books of Council and Session the 24th day of March 1902, by which she directed the marriage-contract trustees, in the event of her being survived by her daughter and son (which event happened), as follows:(Firstly) to set aside one-fourth share of the trust-estate, and to pay or make over the same to my son absolutely, if he shall survive me, or to his lawful issue, equally between or among them if more than one, if he shall have predeceased me; and (secondly) to set aside and retain the other three-fourth shares of the trust-estate for behoof of my daughter in liferent, for her liferent alimentary use only, and to pay to her or apply for her behoof, as the said trustees may in their absolute discretion think most expedient, the free annual income thereof during her lifetime, with power to the said trustees to advance to, or apply for behoof of, my daughter, for her more comfortable maintenance, such part as they may think proper of the capital hereby appointed to be liferented by her; and on the death of my daughter to dispose of or apply the capital of the shares so liferented by her, or so much thereof as may not have been, in terms of the power hereinbefore conferred, advanced to her, or applied for her behoof, in such manner as my said daughter may direct by any writing under her hand, whether inter vivos or mortis causa, and failing such appointment, to pay and convey the same to her heirs in mobilibus. She also reserved power to revoke or alter the deed of appointment.
By a trust-disposition and settlement, dated 11th January 1901, Mrs Ewing conveyed to trustees all her estate not conveyed in her marriage-contract, the second purpose being in the following terms:(Second) My trustees shall hold the residue of the trust-estate, and shall apply the same, and the income arising therefrom, for behoof of my daughter, Mary Jessie Ramsay Ewing, and shall in their absolute discretion deliver and make over the same to her wholly or partially, or apply the same for her more comfortable maintenance, and I desire that my daughter shall in all matters take the advice of, and be guided by my trustees, in whom I have confidence that they will take a friendly interest in my daughter's welfare, and make such arrangements for her after my death as they may consider desirable and expedient, and as the pecuniary means from all sources available for the purpose will admit.
On 9th February 1901 Mrs Ewing executed the following holograph writing:I hereby alter the deed of appointment by me, dated 3d August 1898, to this extent, that the provisions it contains in favour of my daughter, Mary Jessie Ramsay Ewing, are to be paid over to the trustees named in the will I signed last month, to be administered by them (or the survivor of them) as directed in the said deed of appointment. In all other respects they are to have exactly the same powers as are set forth in my will.
Mrs Ewing died on 3d April 1901, survived by her daughter, Mary Jessie Ramsay Ewing, and her son, Arthur Ramsay Ewing.
Questions having arisen with regard to the disposal of the share of the marriage-contract estate destined to the daughter, a special case was presented for the opinion and judgment of the Court, to which the marriage-contract trustees were the first parties, Mrs Ewing's testamentary trustees the second parties, Mary Jessie Ramsay Ewing the third party, and Arthur Ramsay Ewing the fourth party.
The first parties maintained that the holograph letter was invalid and ineffectual to alter the terms of the deed of appointment, and that they were accordingly not bound to hand over to the second parties any portion of the funds committed to their charge under the marriage-contract and deed of appointment. They also contended that, in any event, they were not bound to hand over to the second parties the capital of the provisions made in the deed of appointment in favour of the third party.
The second parties maintained that the deed of appointment and holograph writing were valid and effectual in their whole clauses and provisions; that they were entitled to have conveyed and made over to them not only the income but also the fee or capital of the three-fourth parts or shares of the marriage-contract funds directed to be held and applied for behoof of the third party; and that they were entitled to hold and administer the three-fourth parts or shares in terms of the deed of appointment.
The third party contended that the said deed of appointment was invalid in so far as it limited her rights to an alimentary...
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